The main legal point established in the judgment is the application of the definitions of property transactions under Act IV of 1961 to determine the nature of the document (Ex. D1) and the rights conferred on the transferees, emphasizing the fixity of tenure under the tenancy provisions of the Act.

Headnote:
kanam-kuzhikanam - Property Transaction - Act IV of 1961 - S.2(22), S.2(23), S.2(57) - The court discussed the nature of the document (Ex. D1) and its classification as a mortgage or tenancy under the relevant provisions of Act IV of 1961. It analyzed the key provisions of the document, including the amount, possession of properties, term, renewal, and indemnity clause, to determine its nature. The court applied the definitions of kanam, kanam-kuzhikanam, and tenant under the Act to conclude that the transaction was a tenancy, conferring fixity of tenure on the transferees. It also referred to a Full Bench decision to establish that even if the transaction was a composite of mortgage and lease, the transferees could not be evicted due to the fixity of tenure conferred by the Act.
Fact of the Case:

The case involved a dispute over the nature of a property transaction documented in Ex. D1, where the appellants claimed fixity of tenure based on the document's classification as a tenancy.
Finding of the Court:

The court found that the transaction in question was a tenancy under S.2(57) of Act IV of 1961, conferring fixity of tenure on the transferees, and allowed the second appeal, setting aside the lower courts' decision and dismissing the execution petition.
Issues: The key issue was the classification of the property transaction documented in Ex. D1 as either a mortgage or a tenancy under the relevant provisions of Act IV of 1961.
Ratio Decidendi: The court applied the definitions of kanam, kanam-kuzhikanam, and tenant under the Act, along with a Full Bench decision, to establish that the transaction was a tenancy, providing fixity of tenure to the transferees.
Final Decision: The second appeal was allowed, the lower courts' decision was set aside, and the execution petition was dismissed, with all parties directed to bear their respective costs throughout.

Judgment :-

1. The second appeal has been referred to a Division Bench by one of us since there was already a decision by Joseph J. in Karthyayani Amma v. Raghavan Pillai (1962 KLT. 380) regarding the nature of the" document to be considered (Ex. D1).

2. Under Ex. D1 some properties were outstanding with some persons; and a suit for redemption was filed and a decree obtained. In execution of the decree some of the properties were sought to be recovered, when objection was taken by the judgment-debtors in possession of those properties that Ex. D1 was a kanam-kuzhikanam coming under the provisions of Act IV of 1961. This was rejected by the executing court and the appellate court; and ultimately, the matter came in second appeal before Joseph J. The learned judge held that Ex. D1 was a mortgage and not a kanam-kuzhikanam as claimed by the appellants before him. The other items of properties are sought to be recovered in execution now; and the same document comes up for consideration before us. Since the appellants before us were not parties to the earlier proceedings, the decision by Joseph J. is not, as such, binding on them. It is also not disputed that in spite of the decree for redemption the appellants can claim fixity of tenure if the document evidences a tenancy.

3. Now we shall consider the provisions of the document. The document was of 30th Edavam 1099 and it is called otti adharam. An amount of Rs.1600/-was taken to discharge several debts mentioned in the document and the properties haying an extent of 6 acres and 94 cents were given possession to the transferees. A small michavaram (31/2 fanams) is fixed and a term of 12 years is also fixed. The transferees are allowed to plant more coconut and jack trees and pepper vines, to construct kayyalas and sub-kayyalas, to dig a well and to construct, if necessary, a new building in addition to the one already existing and live therein. The further provision in the document is that, after the expiry of the term of 12 years, the transferees, if the parties agree thereto, can have a renewal as well. One more provision has to be noted, because that seems to have weighed with Joseph J. in construing the document as a mortgage; and that is the indemnity clause that if there was any other encumbrance on the properties the transferees would be indemnified. We may incidentally mention that there is no right given to the transferees to bring the properties to sale to realise the amount advanced by them. These are the main provisions we have to consider.

4. The first contention of the appellants is that the transaction is a kanam. A kanam as defined under S. (22) of Act I of 1964 means the transfer for consideration, in money or in kind or in both, by a landlord of an interest in specific immovable property to another person for the latter's enjoyment, whether described in the document evidencing the transaction as kanam or kanapattam. The incidents necessary are: (1) a right in the transferee to hold the property liable for the consideration paid by him; (2) the liability of the transferor to pay to the transferee interest on such consideration; and (3) payment of michavaram or customary dues or renewal on the expiry of any specified period. This definition of kanam applies to the whole of the State. But, in areas in the State other than Malabar, the same sub-section provides, a transaction which is described in the document as Otti, karipanayam, panayam, nerpanayam or by any other name and which has the first two incidents mentioned above and in addition the right to renewal on the expiry of any specified term and the payment of customary dues is also a kanam.

5. We shall now scrutinise the provisions of the document in the light of this definition. What appears then is that the transaction is not a kanam in the first sense in the sense in which it applies to the whole State because the transaction is not designated as kanam or kanapattam. Since this transaction arises in an area outs

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1969 Supreme(Ker) 202

Cases Referred (3)